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Published on 6/27/2024, 4:31:00 PM

Should I Provide a Breath Sample if Asked by a Police Officer in Maryland?

Getting pulled over by the police can be a nerve-wracking experience, especially if you are suspected of driving under the influence (DUI).

One of the critical decisions you'll need to make is whether to provide a breath sample when asked by a police officer.

In Maryland, this decision used to be more complicated; however, recent law changes have eliminated most of the benefits behind providing a breathylzer sample upon a request from a Police Officer.

Before we go further, first we need to distinguish the types of breath samples that we see in Maryland DUI cases.

Understanding Breath Tests

Breath tests are used by police officers to measure your breath alcohol concentration (BAC). There are two main types of breath tests:

  1. Preliminary Breath Test (PBT): Typically administered at the roadside, this test helps establish probable cause for a DUI arrest. The results are not usually admissible in court but can influence the officer's decision to arrest (PBT vs. Breathalyzer).

  2. Breathalyzer Test: Conducted at the police station after an arrest, the results of this test are admissible in court and can be crucial evidence in a DUI case. The device commonly used in Maryland is an Intox EC IR ii.

Should You Provide a Breath Sample?

Now that you udnerstand the differences between the types of breath samples, should you submit to either type?

The easy answer here is no. Unless you know that a breath sample will 100% exonerate you, there is almost no reason to provide a breath sample in a breathlyzer after a DUI arrest as of October 1, 2024. There is never any good reason to provide a preliminary breath test, its inadmissible and only exists to confirm an Officer's suspicions about alcohol in your system.

Here are some of the reasons that this decision is quite simple when it comes to a preliminary breath test:

  1. It's not admissible in Court
  2. You don't have to, and a refusal can't be used against you.

Here are some of the reasons that this decision is quite simple when it comes to a breathlyzer:

  1. You can be charged with a DUI even if your breath sample is under .08
  2. You will still have to do the ignition interlock program as a result of a Probation before Judgement or Conviction, even if you could qualify for a restricted license based on a blow between .08 and .15 according to new Maryland law.
  3. You are closing the door on most of the reasonable doubt in your case, as any sample of atleast .08 will result in a DUI Per Se Charge, which has significantly less available defenses than a traditional DUI/DWI.
  4. By providing a sample you are establishing the presence of alcohol in your system, clearing a major hurdle for the State in any DUI/DWI prosecution.

The New DUI Laws in Maryland

Effective October 1, 2024, recent changes to DUI laws in Maryland have brought both positive and negative changes to DUI law. They have opened the door for expungement of DUI charges, and added new requirements for igntion interlock in cases involving convictions and Probation before Judgements.

Under the new laws, even a first-time DUI offender who receives a probation before judgement will have mandatory participation in Maryland's ignition interlock program (New DUI Penalties 2024).

Legal Consequences

Refusing to provide a breath sample will allow the State to argue that your refusal is evidence of your consciousness of guilt.

The jury instruction reads as follows:

"You have heard evidence that the defendant refused to submit to a test to determine his/her alcohol
level . You must first decide whether the defendant refused to submit to a test. If you find that the defendant refused to submit to a test, you must then decide whether this refusal is evidence of consciousness of guilt. Refusal to submit to a test may be based on reasons that are consistent with innocence or other reasons that are consistent with guilt. In
order to decide whether the defendant refused to submit to a test and what, if any, weight to give the
refusal, you should consider all of the evidence in the case."

As you can see this instruction gives leeway for Defense attorneys to argue a person didn't refuse, or that a person could've refused for reasons other than guilt.

Implied Consent Law

Maryland's implied consent law means that by driving on the state's roads, you have implicitly agreed to submit to chemical testing if suspected of DUI. Refusing a breath test can result in a license suspension of up to 270 days for a first offense; however, participation in the interlock program for one year will stay the suspension for a first refusal. If a person has prior refusals, the length of participation may increase.

Potential Benefits of Refusing

While refusing a breath test can lead to administrative penalties, it may also limit the evidence available to the prosecution. Without a BAC reading, the state may have a harder time proving that there was alcohol in your system, although they can still rely on other evidence such as officer testimony and field sobriety tests.

The Risks of Providing a Breath Sample

Incriminating Evidence

A breath sample indicating a BAC above the legal limit (0.08% in Maryland) can be used as strong evidence against you in court. Even if your BAC is below the legal limit, you can still be charged with DUI if the officer believes you are impaired (DUI Under the Limit).

Unreliable Results

Breathalyzers, while generally reliable, can sometimes produce inaccurate results due to various factors such as improper calibration, certain medical conditions, or even the consumption of certain foods or medications.

Legal Challenges

If you do provide a breath sample and it indicates a high BAC, an experienced DUI attorney can challenge the validity of the test results. This can involve questioning the maintenance and calibration of the breathalyzer device, the procedures followed by the police, and any other inconsistencies that may arise.

The Benefits of Hiring an Attorney

Navigating a DUI charge can be daunting, and having an experienced attorney on your side can make a significant difference. Here�s how an attorney can help:

Expertise in DUI Law

An attorney who specializes in DUI cases will have a deep understanding of Maryland's DUI laws and can provide you with expert advice on how to proceed.

Defense Strategies

A skilled attorney can develop a robust defense strategy tailored to your case. This might include challenging the legality of the traffic stop, the accuracy of the breath test, and the procedures followed by the police.

Negotiation and Plea Bargaining

An attorney can negotiate with the prosecution on your behalf, potentially reducing the charges or penalties you face. They can also explore options such as plea bargains or alternative sentencing programs.

Protecting Your Rights

Your attorney will ensure that your constitutional rights are protected throughout the legal process. They will challenge any unlawful actions by law enforcement and work to ensure a fair trial.

Frequently Asked Questions

Can I refuse to take a breath test in Maryland?

Yes, you can refuse to take a breath test, but it comes with administrative penalties such as a license suspension or interlock participation. Refusing the test may limit the evidence against you but does not guarantee avoiding a DUI conviction.

What happens if I provide a breath sample and my BAC is over the legal limit?

If your BAC is over the legal limit, you will likely face DUI Per Se Charges. An attorney can help challenge the test results and provide a defense based on the specifics of your case.

Can I still be charged with DUI if my BAC is below the legal limit?

Yes, you can be charged with DUI if the officer believes you are impaired, even if your BAC is below 0.08%. Other evidence, such as field sobriety tests and officer observations, can be used to support the charge. Depending on the BAC, there may be an inference that you were impaired instead of under the influence per se under the law.

What should I do if I am arrested for DUI in Maryland?

If you are arrested for DUI, remain calm and cooperative. Contact an experienced DUI attorney as soon as possible to discuss your case and begin building your defense.

How can a DUI conviction affect my life?

A DUI conviction can have serious consequences, including fines, jail time, license suspension, increased insurance rates, and a permanent criminal record. It can also impact your employment and personal relationships.


Deciding whether to provide a breath sample if asked by a police officer in Maryland is a complex decision with significant legal implications. Understanding the laws, potential consequences, and your rights is crucial. If you are facing a DUI charge, hiring an experienced attorney can provide you with the guidance and representation you need to navigate the legal process and protect your rights. Contact FrizWoods LLC today to learn more about how we can assist you.